Darius Gibson v. Department of Correction (SPR 20240501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 29, 2024 SPR24/0501 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Darius Gibson appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 20, 2023, Mr. Gibson requested the following records: 1. All documentation in inmate management system showing the names of correctional officers who have researched me and what they have researched about me for the years 2022, 2023[;] 2. [C]opies of all complaints with complaint names redacted made against [named correctional officers;] 3. Disciplinary history for [three named correctional officers.] Previous Appeals This request was the subject of previous appeals. See SPR23/0381 Determination of the Supervisor of Records (March 13, 2023), SPR23/0709 Determination of the Supervisor of Records (April 25, 2023), SPR23/1481 Determination of the Supervisor of Records (July 12, 2023), and SPR24/2101 Determination of the Supervisor of Records (September 19, 2023). In my September 19th determination, I ordered the Department to provide Mr. Gibson with a response to his request. Subsequently, the Department responded on February 1, 2024, indicating that the responsive records are the subject of pending litigation. Unsatisfied with the Department’s response, Mr. Gibson appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Kate Silvia SPR24/0501 Page 2 February 29, 2024 records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s February 1st Response In its February 1, 2024 response, the Department states that Mr. Gibson has “pending litigation concerning the subject matter of your request in Worcester Superior Court against [two named] officers ... (Gibson v. Hayden, et al., 2385CV00167), so your requested documents are more properly sought in the course of discovery in that case.” The Department goes on to explain that “as of [February 1, 2024], the case remains open and is actively in litigation. Thus, release of the requested records is inappropriate.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to records at issue in this appeal, is still active and ongoing in the Worcester Superior Court. See Gibson v. Hayden, et al., (Worcester County Superior Court Docket No. 2385CV00167). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Kate Silvia SPR24/0501 Page 3 February 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson